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TMI Blog2011 (3) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the normal time-limit of one year i.e., starting from 1-4-2001 to 15-10-2001. From the records it is seen that the appellant had maintained their production account and also issued invoices in terms of diameter of the yarn and not in terms of denierage. Once the accounts are maintained in that fashion the denierage can be computed only according to the formula adopted by the Commissioner. Needless to say, the assessee will be entitled to the proportionate Cenvat credit, (which they have reversed on availing duty exemption). - E/2315-2316/2003, E/1422/2004 , E/560/2009 - A/218-222/2011-WZB/C-II/(EB) - Dated:- 24-3-2011 - S/Shri Ashok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY : Shri Mayur Shoroff and Gajendra Jain, Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2001 on the ground that these yarns do not satisfy the criterion of denierage of 210, 230, 420, 630, 840, 1050, 1260, 1680 with a variance of plus minus 4% and, therefore, they have wrongly availed the Excise duty exemption vide notification mentioned supra. The case was adjudicated by the CCE, Aurangabad vide order dated 26-3-2003 wherein he found that nylon monofilament yarn of diameters of 0.25mm, 0.30mm, 0.35mm and 0.45mm do not qualify for the exemption as the denierages worked out with permissible tolerance is not covered by the exemption notification. In respect of yarns of diameters of 0.16mm, 0.20mm, 0.23mm, 0.28mm, 0.32mm and 0.40mm, he found that these diameters satisfied the denierages prescribed in the notification and in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27, 819, 1620 were drawn for testing by the department. Whether any test was conducted in respect of the above samples or what happened to the samples is not known to the appellants and, therefore, they presumed that the department might not have found anything wrong with the denierage of the yarn manufactured by them and claimed for exemption. 3.2 The ld. Advocate for the appellant further argued that the denierages were worked out by the Commissioner in his order by using a mathematical formula, namely, p x r 2 x h x specific gravity, where r is the radius, h is equal to 9000 and specific gravity is 1.12, 1.13 1.14. On the basis of this formula, the denierages have been worked out. The appellant contend that this is not the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,98,234/-, only a demand of Rs. 1,06,623/- is within the time limit and after adjusting the proportionate modvat credit, the duty liability would only Rs. 46,834/-. They have also placed reliance on a number of judicial pronouncements, namely, Ramalinga Choodambikai Mills v. GOI - 1984 (15) E.L.T. 407 (Mad.), Bojaraj Textiles Mills Ltd. v. ACCE - 1990 (45) E.L.T. 559 (Mad.), Doddaballapur Spinning Mills Ltd. v. ACC - 1992 (61) E.L.T. 539 (Kar.), Prakash Cotton Mills v. CCE - 1995 (78) E.L.T. 65 (T), Anand Nishikawa Co. Ltd. v. CCE - 2005 (188) E.L.T. 149 (S.C.), CCE v. Damnet Chemicals - 2007 (216) E.L.T. 3 (S.C.), Unique Plastics Industries v. CCE - 2002 (145) E.L.T. 604 (T) Gajendra Enterprises v. CCE - 2008 (232) E.L.T. 445 (T) in sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been issued in April 2002 and, therefore, it can cover only the duty demands from April 2001 onwards and we hold accordingly. 7. Coming to the second issue, it has been seen that in respect of the yarn produced by the assessee in terms of diameters it has been found that in respect of most of the diameters other than the diameters of 0.25mm, 0.30mm, 0.35mm 0.45mm, denierages were found to be satisfying those prescribed in the notification. Therefore, the assessee could not be faulted for believing that in respect of parameters as per the formula worked out by the Commissioner, they would have been eligible for the exemption. Even in respect of the diameter 0.45 mm, it is seen that if the specific gravity of 1.14 is taken, the denierage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om April 97 to March 2001 is clearly barred by limitation of time as there was no suppression or willful mis-statement of the facts on the part of the assessee and, hence, the extended time-limit could not be invoked under the proviso to Section 11A(1) of the Central Excise Act, 1944. Consequently the penalty imposed under Section 11AC and the penalty imposed on the Marketing Executive under Rules 209A of Central Excise Rules, 1944 and Rule 26 of Central Excise Rules, 2001 also cannot be sustained and we set aside the same. Even in respect of the demand within the normal time limit, the benefit of exemption notification has to be extended to the assessee in respect of yarn of diameter 0.45mm, which if the specific gravity is assumed as 1.14 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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